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tv   Book TV  CSPAN  October 6, 2013 8:30am-9:26am EDT

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online at content. >> garrett epps greece to the constitution talks about the authorities that marked attacks as well as the constitution's language. this is about two hours. >> please join me in welcoming garrett epps to the national archives. [applause] >> thank you for that generous introduction and thank you to the archives for inviting me here to be so near the actual cost of tuition. and thanks to everybody for taking their lunch hour to come out and listen to me talk. as doug noted, this is the
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226th anniversary of the u.s. constitution and i am reminded of vindication on the 200th anniversary, when the nation magazine asked novelist el doctorow to read the constitution from start to finish in right of his reactions. didn't enjoy the assignment. is 5000 words long, but reads like 50,000 he said. alexei erdrich and shows not a trace of wit. he uses none of the troops of literature to create an pathetic state of mind of the reader. those of you who've read the work now that he is one of our finest writers and understands american history very well. but this occasion i think you missed the story. for one thing, he missed a third of the constitution, which is
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7500 words long. apparently he quit when he got to the end of the original power. under the common american misconception that the amendments don't count. even reading the 1787 document, kia i think missed some truly high rhetoric, some literary trope and may be no wait, but a certain amount of irony. like at doctorow, americans love the constitution. we know it is important and we enjoy arguing about it. but for a lot of us, actually reading it is boring. we know it's important, but we are sure the importance lies in what is written down on the page. there is a meaning somehow other
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than that. and that is an american intellectual trade because our country, which has given many wonderful gifts to the world has never produced a pain team of the calibrator of leonardo's last supper. we have however produced the da vinci code. and the meaning dares that for americans, if the last supper is simply an immortal deeply human work of art depicting a central moment of this story of jesus, boring. but if it has a secret message and if that message is about a relatively obscure kings that banished from the earth 1200 years ago, now is something really interesting. never mind that the last areas.
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a lot of americans are more inches to them what it means. similarly, the meaning of the constitution often seems to trump the constitution itself. and did not meaningfully express any terms such as what the framers intended. that original intent is our national da vinci code. or to put it another way, i have drama 16 years they lived in the pacific northwest. original intent is to the constitution was sasquatch is to the cascade mountains. because he believed in, obsessively my relatively seldom actually seen. i teach constitutional law for a living and a lot of people out, they come to me with concerns about one cause or another and ask what the framers intended? data like my essay because my
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aunt they are is they intended to read the words in that cause than have us interpret them. that just doesn't seem right. it doesn't set well. to a lot of americans, the words of the parchment seemed less support them what the framers were thinking when they wrote them. we know those thoughts. our present-day constitutional differences advantage. the best-selling novels, william barton bernie dan brown style thriller called the lost constitution. the lost constitution is about a draft of the constitution in philadelphia that in a break, the "washington washington for n the delegates are stretching this very famous nixon is notes on the constitution. so the publisher says that this draft is annotated by the founding fathers.
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the drives marginal notes spell out in shocking detail the founders unequivocal intentions. the unmistakable meaning of the bill of rights paddled and purloined, traffic and concealed for over two centuries. this lost constitution could ever change america's history and its future. the idea is that the words that are upstairs in the parchment, those are clear. but if we could get hold of some other words that those same people wrote, that would make everything clear. freedom of religion, state sovereignty, the rate to bear arms. these other words are so powerful in the last constitution that people are willing to kill for them. if we could get our hands on his words, we would finally be able to read the words we do have.
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original intent, original meaning, original understanding. whatever you call this idea, it is worth asking why it is so important in the international dialogue. there is a history here. it is particularly american. we the people for the past 200 or 300 years have been a more intense relationship with the christian bible than probably any other people in history. that biblical tradition is where the idea of original intent as something that can be discerned and known originated it self. christians have been reading the bible for nearly 2000 years, but there've been many ways of reading it. throughout christian history, somehow threaded as an allegory of divine love.
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some said that it was a set of parables, that they were to teach us how to live by reading these stories. others said it was what's called an end to her cheek, which meant a hidden key to events in another world that could be understood only by those who aching mystical access to god through meditation by divine grace. the idea that the bible has a single literal in 10 day meaning, by which i mean a meaning available to discernible bike the drive an inveterate believer without the need for priestly interpretation or mystical revelation. bad in terms is a relatively new idea. it can primacy only during the protestant reformation. [inaudible] the great religious historian who taught at yale for many
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years but in 2004 that luther and the other reformers believed that scripture had to be non-interpreted, but delivered from interpretation to speak for itself. what mattered to luther was the original intent and pensive folderol is, but a role meaning of the words. and pelikan saw as they think perhaps you may interact forbear of the way americans interpret the constitution. the general protestant notion of original intent became even stronger in this country over the past century. it's almost exactly 100 years ago between 1910 in 1915, a group of american evangelical theologians and scholars published a set of theological
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essays called the fundamentals of christian belief. these very influential essays gave rise to the christian movement we called fundamentalism in honor of the series of pamphlets. in large part, fundamentally was a revolt against a style of bible reading. against the 19th century scholarly movement because the higher criticism. higher critics worst callers of a kind we would all recognize today. they applied recognize secular techniques of analysis to the text of the bible. they did some books that owns those other books including some that came from a the hebrew tradition. some of the parts of genesis they not actually began by describing other near eastern deities like all our data. they did not take stories like the deliverance of egypt by the
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age of the earth are they raising -- they didn't regard these as historical fact. they interrogated the text like historians, like linguists looking for a contrasting and confirming evidence that they were very skeptical about the idea of miracles such as making the sun stand still. fundamentalists react very badly to the higher criticism. they felt that this method of reading the bible threatened the entire enterprise of the christian religion. they wrote that the bible is not to be set to take historical writings. it is the word of god. that means that all parts of it are inspired, created directly by the breath of god into the humid soul. and that inspiration is not general. it's not a set of ideas. it's verbal. god has fixed for all time, not
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just the ideas in the bible, but the words themselves. these words are inherent in a foul ball. there are no mistakes in the bible. the bible is true. we know it is true because of says it is true. we know it is true because the prophecy of the old testament have been fulfilled in the new. tribute of bible without expecting before hand its divine nature is not to read it at all. every word has a meaning. that meaning is fixed. that meaning is not effect by historical contexts. that meaning is never subject to re-examination in light of moral and social change. and those meanings fit together into one divine home. how does that sensibility play out in the contemporary christian thought? well, to begin with, when
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americans talk about the constitution, they often mean something more than the document itself. there is a biblical canon of constitutional materials. we have the book of genesis, which is the declaration of independence. we have the law and not the constitution that both. but we also have the profit for the founding fathers, a wonderful mythological terms that the historian joe apart recently pointed out that the term was coined in 1920 by the profound constitutional anchor, warren g harding. the words of the profits are collected in madison's notes of the philadelphia debate. madison never thought of these notes as having any sort of officials that is. they are now a key part of the american bible. we have our 10 commandments. as he called them, the bill of rights. that sacred number 10 is a coincidence. not a sin originally proposed
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the amendments. two of them got lost in one to 200 some years to be ratified. the third team articles that the bill of rights sounds different. i always recall the scene and mouth works history of the world part 1, for those of you have seen it come where moses comes down from sinai or three tablet instead the lord jehovah is a menace to use 315 -- 1000 breaks because 10, 10 commandments. so you know, all to obey. there's a certain accidental quality to the canonical nature to the bill of rights. the christian bible has st. paul and the americans have the federalist bible relates to call the federalist papers. and their status in the canon is also exited told. the late pauline maier wrote a wonderful book that i recommend highly called ratification, the people debate the car touche in
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1787 to make 88, the first book length ratification. and she asked to do the federalist were circulated almost nowhere except new york. the essays were written to procure ratification by the new york legislature. it was by no means as passionate analysis of the constitution she said. the dissent hubley is, go read by hamilton, madison and jay. madison had attended every day of the philadelphia convention. hamilton got there when the code. he was a busy guy. jay was not a delegate at all. meyer says the authors of the federalist had no time to show each other their essays before handing them to the printer. in fact sometimes they couldn't even read their own work before was put into type. not only that, there's every reason to believe that the authors didn't themselves believe some of the things that
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they wrote. jefferson wrote madison a letter consoling him for having to read the federalist. he said with regard to the federalist in some part, it is discoverable that the author is only to say what may be best said in defense of opinions in which he does not concur. but by our time, the federalist has become divine, inherent in timeless. in 2010, the scholar anthony peacock in the introduction to a pamphlet entitled how to read the federalist papers wrote, use of a single student in success that the federalist possess the uniformity of intent. the federalist was to be read as the work of one mind, not three and was coherent throughout. he had come in the federalist is intended to be true for all times and all places. martin luther couldn't have described the bible better.
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so anything scholars are under the sway of the semi-religiousness geek, how can we expect citizens to be immune? the literal view i think they keep us from seeing everything that is in the constitution because the constitution is not coherent. it is in fact confusing and ambiguous in many places. it now so keep us from noticing what is not there because the constitution is incomplete. there's a second, with original intent as a source of law if by that we mean the thoughts of the framers. it is this. the constitutional convention doesn't set. its members are dead. so are members of ratifying conventions to prove it and so on factor all but a few of those who took part in writing and ratifying the 27th amendment that have been added to it since it was originally drafted. we can't revise that they wrote
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without great effort. why should their long-ago intent or understanding scientists, the living, today? well, if their intent was to read the words they wrote, fair enough. our job is to interpret them. but if their intent was that we should not apply the constitution for ourselves, that we should stand on tiptoe in the dark, hoping to hear their voice comment in their their intent was undemocratic, immoral and just preemptively. the final disagreements of the quest for original intent or original meaning or original public understanding is that it is a highly technical search involving etymology of words, the evolution of language, the intellectual history of anglo-american line and society. if we accept that as determining
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the meaning of the constitution, then the people don't cover themselves anymore. we are handed over to those historians who have special knowledge of these things, or even worse, judges who usually have virtually no knowledge of these things, but believe they do and remember their eighth grade civics class quite vividly. ordinary citizens however have no standing to gauge in constitutional interpretation. is the constitution is binding not because of its pedigree, but because we the living pledge our allegiance to it, maybe what should matter is what the words say to us, the living today. our attention, our understanding matter far more than those of the dead. i developed this view over a number of years concentrating on the text of the car touche in its golf. start out by reading marbury
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versus madison that's very exciting. you read a bunch of cases and articles about the case is. then you read articles that the theory of thought and the article about cases. but sometimes you skip the tax altogether. what happened to me with this, you now, but every professor for those who recognize the reference, i dream of writing a best-selling vote, retiring to the bahamas, drink and run through a straw, forgetting the whole thing. not long ago i spent a year and a half trained to do this. i was writing proposals for robots ester books. i thought of them are pretty good. the founding fathers quick weight loss diet i thought had money and that, but none of them had ever got past the agent says, much less did the editors. one day i had a thought because it is getting more and more frustrated. it was this, i remembered my days as a starving novelist and freelancer is that dude, do you
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have every writer's dream. you have an indoor, reasonably well-paid job that you can't be fired from, where it's okay to write him off this time and you even get to take the big bands and take them home. i had a moment like the one experienced by one of faulkner years ago he wrote later. one day i seem to shut the door between me and all publishers addresses and book lists. i said to myself, now i can write. so i decided to write as if what i wrote would never be published anywhere. for nearly two years i read the constitution's text every day edinburgh for my own satisfaction alone and analysis of what it really sad article by ardor, clause by clause, amendment by amendment, section by section. it was the most satisfying work
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at and since i get into my teaching more than 20 years ago and it ended up being published by oxford as an american i pick still astonishes me because no one should be paid for having not much fun. i try to read the bible all the way if they knew how. i was freed from the need for trained to tease out the answers to modern legal problems. i wasn't doing that. who cared what i thought. and i used all the ways of reading that i knew. bible reading was a very strong part of my childhood. i grew up in the south in which a christian school. i am trained as a lawyer. i have one specific techniques for interpreting statutes and will and contracts. i also was a folklore nature of many years ago in college, studied at the poems by the odyssey and iliad and finally i
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read the constitution as they are poetry, with weather saw the poetry or not, i did. i written poem since i was very young. one of my first career aspirations for this to be a poet. i've actually published a couple of poems over the years and i began to find my poetic interests reflect that in the text. i learned something from each way of reading. some parts of the constitution are homeric. some are biblical. some are as dry as the hatchet of fraud. and others are as elusive as a poem i have only taken then. delicate, suggestive, offering empty spaces that we are invited to fill this need. just as one example, consider a poem written by emily dickinson in 1865. how today, people think of emily
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dickinson is a kind of private poet of the kitchen and the guardian on the drawing room, but the truth is she was like all great poets, a very powerful instrument for detecting what was happening around her and expressing it in ways different from those that others do. 1865 was the turning point in which james mcpherson and others call the second american revolution. the surrender at appomattox, the assassination of lincoln, the final approval of the 13th amendment, the beginning of the reconstruction congas and dickinson detective of this going on. 1865 got away with her most productive year poet. whether there's any synchronicity and then i don't know, but it is a moment when all american society was changing, becoming something
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radically different and she felt a burst of energy during the year. consider one poem she wrote that begins like this. revolution is upon systems rattle from. when the winds of will are stirred, excellences boom. in this stanza, she uses a natural advantage to eliminate a complicated social concept. she takes social revolution and juxtapose it with the image of a seed pod in winter. we've all seen dried up, waiting for spring rains and wind to break it open and spread the seeds to bloom in the following summer. the 17 words do a lot of work.
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now consider a tax that holds a prominent place in the american imagination. a well regulated militia being necessary to a well regulated militia being necessary to the security of a free state. the right of the people to keep and bear arms shall not be infringed. this is 10 words longer, 27 words, like the dickinson poem it doesn't explain. it suggests by using images. it evokes the image of a militia, that words that minister to important but ambiguous concepts. i'm the one hand a free state. on the other, the people and their rights. what is the free state? is that the state of maryland or the commonwealth of virginia, which by chaining a militia can insist federal tyranny, or is it a stake in the international law since, visit the united states which must have a strong militia
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as part of its national defense? who are the people? are they the villagers gathered on the town agreed to use town to shoot baskets during training day? are they solitary frontiersman toting home for its rifles for protection against bears and cougars. even if you have a gun to my head, i am not enough to take that i know what the second amendment means. i do know that as i read it, i responded many levels. as a vital reader, i respond to the negative commandment language, though thou shalt not, which suggests to me that i'm in the presence of something sacred. as a lawyer, i'm reminded englishman's right to bear items came from the bill of rights, 1689, which explicitly power of parliament to define and limit their great as it shows.
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as a reader of athletic, i think of this event homer the great assembly. assembly is a very important theme in all of athletic, or warriors gather to determine what shall be done in each one has a voice because and only because he is able to bear arms during the constant warfare of bronze age greece. finally, as a reader of poetry, i hear some fairly complicated verbal interrelationship. security is as important as right. for example. regulation is as nice arms. use of the word themselves contain their own contradiction. take regulated.
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at our time, the word seems to have a pretty established meaning. you may discover, brad, put in order. here in washington we are all familiar with regulators. saving the presence of any who are here, we frequent actually than because we regard them as powerful beam could to prescribe rules. it meant that in 1790, but it meant something else. it echoed with a long forgotten meaning of the word regulator, which meant those people, a member of a cell for violent vigilante gang that was fighting the local government. in the constitution itself, the militia is tightly held under federal control. but in the amendment guarantees the right of the people to bear arms, the words may also have go
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with revolt against established authority. what does the second amendment really say? you heard the words what does that mean it's a lifetime's quest. if the second amendment reads like a lyric poem, other parts of the constitution reads like epic. article i, which creates and empowers congress is the heart of the constitution. section eight, the catalogue of congress' powers is the heart of article i. ..
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>> in the image of two cities, one, the city of peace, weddings, wedding feasts, athletic competitions, law courts, farmers with land, young girls crowned with a bloo blue f fresh garlands. the other city, the city of war, is filled with combat, devastation and death. a divided army glistening in battlefields in a struggle where strife and havoc plunged into fight and violent death. as that shining shield reflected the greeks idea of their world, section eight reflects the
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framers foreseeing ideal commonwealth. like achilles shield, it depicts a two cities. in the first case, in this case we might call them the city of trade and the city of war. the first half of section eight is taken up with matters of trade. congress has the power to borrow money, regulate congress, grant monopolies to authors and inventors, establish rules for bankruptcy, is township post office, join and regulate money. the second half of section eight is governed by war. congress has the power to declare war, commission privateers, capture and punish virus, sees prices on land and sea comest osha maintain an army and navy, and call for and regulate the militia, even employing if, if need be, against the states themselves. in these two cities together, congress is given a wide
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tapestry of powers. section eight suggest a legislative body with comprehensive authority in these two areas. increasingly -- interestingly enough, however, section it is not like achilles shield. it does not comprise all of human life. conspicuously missing is any reference to what the 18th or 19th century mind would've called the separate sphere, the private realm of family, child rearing and sexuality. there is no reference to education, the health, tom reilly, to what today we recall the quality of life or the tone of society. that presents us with an interesting question to ponder. what does this silence mean? the way we read it is constitution may matter quite a bit here. statutory readers may invoke the
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adage -- that's the only latin in the whole talk -- to affirm one thing used to exclude all others. fundamentalists i think often find prohibition in biblical silence. other forms of reading might consider the entire text and context, the general welfare and necessary and proper clauses. and note that other sections of the document occupy themselves with setting out limits on congress' power explicitly, wraps this section is not to be read as a set of limitations. the answer a reader reaches depends on that readers idea of america, on what that reader sees in achilles shield. even though the competition contains many parts, i think it's our duty to read it as a whole. our job is to read the entire text with our entire cells.
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vladimir once suggested that a good reader doesn't need critical theory or specialized training in an english department, but does need a dictionary, some imagination, a good memory and some artistic sense. when i read the constitution as this kind of reader, it says some interesting and surprising things to me. some of them it says in the words he chooses. some it says in the way it places those words, and ideas and conjunction, or separates them. summit says in the words it doesn't say and the places it doesn't say them. i'm going to throw out at the end of two things that i find that the constitution says. if any of these readings are surprising, so per -- perhaps i can explain will become to questions enemy. to me, the constitution says its
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purpose is to create a powerful national government. not to restrain it. tinian says its aim is to restrain state governments and not to empower them. it says to me that congress remains the most important political institution in american life. not the president, not the state governments, and certainly not the supreme court. it says to me that the constitution exists within the context of international law, and that we are to use and apply international legal norms and concepts in our courts, our legislature, in our states, and in our executive branch. proof it says to me that the right to vote has become a central to our form of government. that right is mentioned five times in the constitution. more than any other right. at no point does the
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constitution's text suggests there is a power in the supreme court could decide that congress has protected that right too much, or that access to the ballot has become too easy. i could go on but my reading is my own. i met moses. i'm not even mel brooks. i met here to hand downwards from on high. you may read the constitution differently, and if you do, you have my respect as long as you're reading this constitution. not the articles of confederation, not the declaration of independence, not madison's notes, not the federalists, not locke's second treatise on government, not magna carta. this constitution, not common law. this constitution, not natural law. this constitution, not divine law. and if you are a reader of this constitution, then to quote walt whitman, our greatest constitutional poet, every atom
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belonging to me as good belongs to you. so thanks for your patience. i'll now take your questions. [applause] >> go to the microphones if you want to have questions. i think you were first. [inaudible] -- the next supreme court opinion justice scalia or justice thomas were to write that madison has risen from the dead and appeared to them personally and that was behind -- or any other seven justices, and that was behind their opinion. what would your reaction be spent? i don't want to pick on justice scalia. that's a lie, i really do. he actually basically has said that in his opinion in his
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concurrence in citizens united. justice stevens writes a long descent and citizens united come using the mentors as he believe the framers of the constitution would not have wanted corporations to have the free speech rights that were given to them or found for them in that opinion. and justice scalia takes this on any says, well, you know, that may be true. the things you found maybe true but that's just because in 1787 people thought of corporations as involving monopoly. and our corporations don't. our framers, the framers, if they knew that, would really like them, which i translate as, ma i knew the framers, i worked with the framers, the framers were friends of mine. trust me, the framers would have thought this. at i think the answer, of course, would be -- first of all, if madison came back and said can we have an input to
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mandate for health insurance, his head would've been what is health insurance? he wouldn't have known what to say. but beyond that i think he would have refused to say what his intention was. madison was very reticent. he did not believe the intention of the framers should govern. beyond that if he did say i think he would say shut up, grandma, we've got problems to solve now. because his opinion is very important. i'm a great madison fan, but our opinions are important, too. that's what living in a democratic country with a constitution means. >> my question may be more difficult to frame. and that is, what you are saying is, at least to my is, it's what i believe how everything you said about the bible, et cetera. and i live in california. i live in los angeles where i i have a bottle of people who also agree with me, but it seems as though the country overall is
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not agree with you. my question to you is, given today's congress, given today's sprinkler, i don't have to be tactful. so my question to you is, you've written a book. you're helping people listen to you. we got here but what is your overall sense of, are you depressed? are you disheartened by what is going on? do you have hope that things might change? >> that's a wonderful question, i think well framed. i was a couple of things. one is that since 1992, or so, that's 20 years, and particularly gaining force in the second -- clinton's second term, bush v. gore, then coming through george w. bush's term ends the current one. it's been a great time to be a constitutional law professor. most of the time you say, i'm a legal scholar and i read the original materials and people run away.
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but in the past 15 or so years, i want to talk to you. what about bush v. gore? the fact is that entry to time or constitutional theorists are prominent these are not necessarily the best times for the republic. you know, i once ran a mark article -- a mock article that was published on the web which it said, increasing numbers of constitutional scholars are alarmed by the nation's prosperity and. the founding fathers did not intend the country to thrive, they say. we need a crisis. and we are in a crisis. people talk about the constitution. they are thinking about the constitution. that's exciting. there is, unfortunately, a lot of what i regard as fairly toxic nonsense being put out in many ways i some fairly self interested people. eye gouge attended tea party constitutional school.
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i thought, why not? and i went there and i learned, and as a church basement in northern virginia in an event sponsored by the local republican party. they told me the constitution was written by god. literally, i don't mean in the metaphor, that it was handed down to moses on mount sinai, that moses used it to govern the israelites, but after the babylonian captivity of the lost tribes action migrated to britain where they became the anglo-saxons which strikes me as trading down, but i don't -- [laughter] i don't want to make a big deal about the. they became the angle saxons, and then they brought the most take constitution across to america where the resulting anything that wasn't done in fifth century saxon england is unconstitutional. so a lot of this stuff is being put up to its being put out by people have a lot of money behind them. i think anytime a constitutional crisis the only thing that you
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can do is take part in the debate. if you think what you think and you see people saying things that you think are wrong, jump in. i think letters to the editors are tremendously important. and i think communicating with your members of congress and your state legislatures are tremendously important to there are people in missouri who i think, i think wrote to the governor and said, no. whatever you may have read, we can't really we feel federal law in missouri and make it legal to shoot atf agents if they come to enforce federal law. and the governor from what i heard has not vetoed that notification law. these things are out there. one of the nice things about the constitution is that people are really interested in it. they may have bad ideas, but they are really interested in it, and i think it's very important to understand that
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popular constitutionalism is an enormously powerful force in american history. constitutional law, constitutionalism is not and should not be the property of trained people like myself, and judges. everybody needs to get involved and educate themselves and say what they think. the answer is we'll probably never get to a place where it's really all okay. because basically what the constitution is a set of rules by which we invite each of without killing each other, so let's do it, right? >> i'm carol phelps. i live in the district a claim which is also known as the last colony in north america and we have no congressional voting rights. i was when how much he thought about the issue while examining the documents, including history of supreme court decisions like dred scott and so on, underlying spirit of who is for real. even when my skin is why i'm still invisible. and do you see at a deeper level
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the constitution should give us the, make us real people? and did so, what can we do about it? especially, can you tell your senatorsenators and your governd your governor's campaign? >> i hate to type this but i live in the district as well spend so you know it in your heart every day. what can we do you? because to me we all lose when everybody is comfortable with our lack of citizenship and inability talk about it and make connections. >> this became an issue most recent at the beginning of the obama administration, because the congress had before it the a bill that would by statute have given a congressional representative in the house to the district, and i hate to say this, but having read the constitution over and over i thought about it, it was pretty clear to me that that was unconstitutional. that the house does not get to give representation to anyone but the people of the several
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states. that's the language in the constitution. attorney general holder tried to make an end run around the office of legal counsel which offered that opinion by asking the solicitor general if he should defend the other statue. and, of course, the solicitor general being a defender said yes. but i think it's clear the constitution excludes congressional representation for the district. in order to get electoral votes we had to amend the constitution. and if you read that the minute carefully, i read it a bunch of times and some of us like -- you notice that even in giving the district gets electoral votes, it insists that the district is still not equal to any other state in the union, because the district and never have more member -- more -- if we moved the entire population of the country into the district, so that there were 390 people living here, under the constitution we could still only have three electoral -- elect
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horst. so wyoming has 30. the district has 30. there was a time in fact when it and then it was passed the district what it would've been entitled to for so they had to make sure that the district would get some representation by get some representation but not as much as everybody else. so the inequality, the mindset of thinking of the district is unequal is pretty powerful. it would take a constitutional amendment, or congress could, there's nothing in the constitution to prevent this, by statute and that the district as a state. that doesn't take a constitutional amendment, just a statue. it's not going to happen, it could. this gentleman. >> i want to ask about something that's been very much on the minds of the country the last several weeks. and that's the warmaking powers of the president. and i want to ask you
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specifically what you see in the constitution that answers the question that we've been pondering, does the president have to go to congress for authorization if he wants to say, attack syria? or is that, as the presence of language, suggests something he chose to do but wasn't required to do? >> you know, i think that's a wonderful question and we have been arguing about it, and it's an illustration of my principle that when things are going well, no one has a question for the common law professor. we are faced in this situation by the assertion by a president of an authority that no president has ever actually used before. and let me explain what they mean, because we all know the president uses military force under a number of circumstances
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without going to congress. the fact is that most of the time the president uses military force in the case in to defend american troops and personnel abroad, to defend american civilians abroad. and i think there's a pretty general agreement that no matter what interpretive method you use, the president is to have that authority. as commander-in-chief. the president has asserted in the years since world war ii the authority to use military force under statutes of the united states. statutes that have been ratified by the senate. such as the united nations charter which was used as the justification for entering the korean war without congressional
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authorization. even in kosovo, the administration was able to obtain the multilateral trade organization which we're members to carry out resolutions, some indian with the u.s.a. could take counsel resolution although the security counsel did not authorize our participation in syria, we don't have any of that. we don't have american troops or personnel or civilians at risk. i'm not disparaging, i'm not deprecating the horror of chemical weapons, but they are not being used on americans at the present. we don't have a treaty. we don't have a multilateral alliance even that is asking us to join them. we sorely don't have the authorization of the united nations. under that situation it seems to
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me the president is beginning hostilities from what i call a standing start. we are not being pulled into it. and i think that is the circumstance under which the text, and if you want to go into the history we can do that also, suggests that in that circumstance the president has to seek authorization from congress. it doesn't have to be a quote declaration of war. the declaration of war is now obsolete. but the president does not have the authority, and i can't find anyone who has asserted it until recently, until the second bush administration. the president does not have the authority december decide we ought to be in an armed conflict with another country, and started. that is the kind of decision that the president needs to go to congress for, and i was extremely hearkened when the president decided to do that. now, your second point is that
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he is that i don't need to ask for this but i'm going to. and to some extent that's the kind of part of how i would just assume he hadn't said that, to be frank, but it is a part of the duck and very game that goes on to give the, the two branches are will bet like restless, world wrestling entertainment, always talking smack about each other outside the ring. i'm going to bring you down. i'm going to hurt you. and this is what the president, the president is doing this in part i think enhance his bargaining position with congress saying i don't really need this pic if you vote against it, i may do anyway and if i'm a great success, you look like an idiot. but i'm not sure in comment, i'm not sure in things you hear about what's going on inside the administration suggests that the really wouldn't happen. congress held a vote and voted this down. it's hard for me to imagine that they would then say we still
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have the authority. we don't know, however, because as far as i can tell a lot of historians about this, we've never had a situation in american history where the president has asked for authorization to use military force and congress has refused. so i do know. we are writing a new chapter here and future constitutional groups will be discussing this incident. it's a good time to be a common law professor, what can i say? one more. >> this is more in the historical line again. i think you mentioned that there were 13 amendments to the constitution, of which eventually 10 have come into effect. >> yes. >> one as recently as ugly the early 90s -- >> there's 11 if you count the one in the early '90s. >> the first 10 and then one came in the early '90s, and you said there were two that got lost. lost. could you mentioned the two that
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got lost? >> as i recall one of them was simply to add to the preamble that the sovereignty and all power would rest with the people. that was something madison believed, and a lot of people believed and they just want to spell it out. there was also, as a kind of thought to the anti-federalist. the anti-federalist were very critical of how small congress is going to be. this was going to be a very elite organization far from the people and medicine put in a provision that said, that it can't be, there can't be fewer than a certain number of people represented, or more than. i can't remember how many people could be in a district. and it turns out that it's good that we didn't put that in. and as i recall, that didn't actually make it through the


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